Federal Appeals Court Rejects Foster Care Policy That Discriminates Based on HIV/AIDS Status

PHILADELPHIA — A Pennsylvania county children’s agency cannot disqualify prospective foster parents because one of their children has AIDS — and cannot force them to disclose their children’s health status — the U.S. Court of Appeals for the Third Circuit ruled, in a decision hailed today by the American Civil Liberties Union, which represents the parents.

A couple identified in court as John and Mary Doe sued Centre County in 1998 after their application to serve as foster parents was denied. After the Does had applied, the county passed a policy that would have only allowed them to adopt other children with HIV, or obtain written consent from HIV-negative foster children’s biological parents. Case workers also screened out the Does because they are an inter-racial couple, the lawsuit alleges.

“The policy at issue was not medically sound,” said Larry Frankel, Executive Director of the ACLU of Pennsylvania. “It discriminated against people unfairly. And ultimately it hurt children who need good homes. We’re gratified that the court correctly considered medical facts about HIV transmission and risk, and agreed that bias against people based on the HIV status of their children is unlawful.”

In its decision, handed down late yesterday, the three-judge panel unanimously reversed a lower court ruling that dismissed the Doe’s lawsuit. In so doing, the appeals court found that the broad exclusionary policy is unlawful under the Americans with Disabilities Act, and that such decisions must be made on a case-by-case basis.

Mary Doe, who was once named “Foster Parent of the Year” by the New York State Foster Parents’ Association, has cared for eight foster children. She eventually adopted seven of them, including Adam, the couple’s now-11-year-old son with AIDS. Adam came to Mary as an infant after he contracted HIV from his birth mother. He also has symptoms of autism and permanent learning deficits, including difficulty speaking and expressing himself. He receives nourishment through a feeding tube and relies on the Does for help with eating, cleaning and personal hygiene.

Despite the fact that he is nearly incapacitated, the county argued that Adam posed a risk of transmitting HIV to other foster children, either through sexual contact or sibling “rough-housing.”

Yesterday’s ruling, citing volumes of medical and scientific research, dismissed this argument, saying, “… the county’s blanket policy discriminates against the Does because of Adam’s HIV-positive status even though the probability of HIV transmission, and consequently the risk, is next to zero.”

As the American with Disabilities Act faces increasing challenges, yesterday’s ruling can be a powerful tool against discrimination, the ACLU said.

“This decision says that even if you couch discrimination in concern, it’s still discrimination – and it’s unlawful,” said Matt Coles, Director of the ACLU AIDS Project. “It’s also no coincidence that this case includes racial bias claims. As the demographics of AIDS change, we increasingly see multiple causes of discrimination, so we’re particularly pleased with the court’s finding that both discrimination claims can go to trial.”

While wrangling with the Does over Adam’s HIV status, county case workers told them that the HIV issues may be irrelevant anyway, since the county might have trouble placing either an African-American or a Caucasian child with an inter-racial couple.

The county has not indicated whether it will ask the U.S. Supreme Court to review the decision, or allow the case to go back to trial.

The case is Doe v. County of Centre, PA, et al. The ACLU of Pennsylvania represents the Does. Scott Birth, a cooperating attorney with the ACLU of Pennsylvania, is lead counsel.